Manoj Kuruvila v. Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **TUESDAY, THE 20TH DAY OF MARCH 2012/30TH PHALGUNA 1933** **WP(C).No. 10147 of 2011 (P) ---------------------------** ## **PETITIONER :** - **--------------------** **MANOJ KURUVILA S/O. GEORGE KURUVILA, METER READER, ELECTRICAL SECTION, PAINAVU, IDUKKI DISTRICT. (MECHIRAKKATTU VEEDU, KALTHOTTY.P.O., MEPPARA AYYAPPANCOIL, VILLAGE).** ## **BY ADVS.SRI.MATHEWS K.UTHUPPACHAN SRI.E.S.ASHRAF** ## **RESPONDENT(S):** - **-------------------------** **1. THE KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY.** **2. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD,** **VYDYUTHI BHAVANAM, PATTOM THIRUVANANTHAPURAM.** **3. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD THODUPUZHA.** **4. DEPUTY CHIEF ENGINEER, ELECTRICAL CIRCLE KERALA STATE ELECTRICITY BOARD, THODUPUZHA.** **R1 TO R4 BY ADVS. SRI.C.K.KARUNAKARAN, SC SRI.PULIKOOL ABOOBACKER, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** ## **WP(C).No. 10147 of 2011 (P)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** |**EXT.P1**|**: **|**COPY OF THE APPRECIATION OF HIS WORK IN THE BOARD A**| |---|---|---| |||**CERTIFICATE WAS ISSUED BY THE ASSISTANT EXECUTIVE ENGINEER,**| |||**ELECTRICAL MAJOR SECTION, KATTAPPANA.**| |**EXT.P2**|**: **|**COPY OF ONE SUCH WORK ORDER NO. 93/2001-02 DATED 30.3.2002**| |||**ISSUED BY THE ASSISTANT ENGINEER-IN-CHARGE, ELECTRICAL**| |||**MANOR SECTION, KSEB, KATTAPPANA.**| |**EXT.P3**|**: **|**COPY OF THE SHOW CAUSE NOTICE NO. EB4/2006-2007/670 DATED**| |||**31.7.2006.**| |**EXT.P4**|**: **|**COPY OF MEMO OF CHARGES DATED 4.8.2006 ISSUED BY THE 3RD**| |||**RESPONDENT.**| |**EXT.P5**|**: **|**COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER DATED**| |||**1.9.2006.**| |**EXT.P6**||**COPY OF THE FORM.**| |**EXT.P7**||**COPY OF THE SHOW CAUSE NOTICE DATED 23.5.2008 ISSUED BY THE**| |||**2ND RESPONDENT.**| |**EXT.P8**||**COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE 2ND**| |||**RESPONDENT.**| |**EXT.P9**||**COPY OF THE ORDER NO. GB1/DISC.03/09-10/47 DATED 25.7.2009**| |||**ISSUED BY THE 3RD RESPONDENT.**| |**EXT.P10**||**COPY OF THE SHOW CAUSE NOTICE (REVISED) BEARING NO. EBVS.**| |||**1/28/2009/135 DATED 9.2.2010 ISSUED BY THE 2ND RESPONDENT.**| |**EXT.P11**||**COPY OF THE SAID EXPLANATION DATED 5.3.2010 SUBMITTED BY THE**| |||**PETITIONER.**| |**EXT.P12**||**COPY OF THE ORDER NO. EBVS.1/28/2009/481 DATED 21.5.2010 ISSUED**| |||**BY THE 2ND RESPONDENT.**| |||**(Contd...)**| **WP(C).No. 10147 of 2011 (P)** **EXT.P13 COPY OF THE COMPLAINT SUBMITTED BY THE 4TH RESPONDENT BEFORE THE CIRCLE INSPECTOR OF POLICE, KATTAPPANA DATED 19.4.2005. EXT.P13(a) COPY OF THE FIR IN CRIME NO. 175/2005 OF THE KATTAPPANA POLICE STATION. EXT.P14 COPY OF ORDER DATED 16.9.2011. EXT.P15 NIL EXT.P16 ORDER DT. 15/2/2012 IN CC 390/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KATTAPPANA.** **RESPONDENT'S EXHIBITS : NIL** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 10147 OF 2011 ----------------------------------------------------------Dated this the 20[th] March, 2012.** ## **JUDGMENT** The petitioner is working as a Meter Reader of the Kerala State Electricity Board (KSEB for short), the first respondent herein. He entered the service of the Board on 26-9-2005 after undergoing a due selection. He has been continuing in service ever since. The petitioner has filed this writ petition challenging Exts.P9 and P12 proceedings of the respondents imposing a punishment on him of barring two increments with cumulative effect. His probation has also been extended till the disposal of a criminal case that is pending against him. 2. As noted above, the petitioner joined duty on 26-9-2005 pursuant to his selection as a meter reader. At the time of joining duty, the petitioner had executed an affidavit in a proforma supplied by the respondents. The said affidavit is Ext.P6. According to the respondents, the petitioner had suppressed the fact that he was an accused in a criminal case that was pending against him and that he had made a false statement in his affidavit to the effect that no case was pending against him. The WPC 10147/2011 2 respondents were not aware of the pendency of the criminal case against the petitioner. However, on coming to know of the false declaration made by the petitioner, disciplinary action was initiated against him. 3. On 31-7-2006, Ext.P3 show cause notice was issued to the petitioner, followed by Ext.P4 charge memo dated 4-8-2006. The petitioner submitted his explanation Ext.P5. According to him, though he had been arrayed as an accused in crime No: 175/2005 of Kattappana Police Station, he had not been aware of the registration of the said crime. In fact, he was not even aware of a first information report against him. Therefore, the petitioner explained that he was not guilty of willful suppression of any such facts in Ext.P6 affidavit. Since the petitioner's explanation was found to be unsatisfactory, as per Ext.P8 order dated 27-10-2006, a domestic enquiry was ordered. The domestic enquiry was conducted and a report also appears to have been submitted by the Enquiry Officer. Thereafter, Ext.P7 show cause notice dated 30-5-2008 was issued to the petitioner informing him that the report of the enquiry showed that the charges levelled against him were 'partially proved'. Therefore, it was proposed to impose a punishment of barring one increment of his, without cumulative WPC 10147/2011 3 effect for one year. Though the petitioner submitted his explanation to Ext.P7, on 1-9-2006, his reply was not found to be satisfactory and therefore, a punishment of barring one increment without cumulative effect for one year was imposed on the petitioner. His probation was also extended till the disposal of the criminal case pending against him. Subsequently, he was issued with Ext.P10 dated 9-2-2010 proposing to enhance the punishment imposed on him. The petitioner submitted Ext.P11 explanation wherein he has reiterated his earlier statement that he was not aware of the case that was pending against him. He also complained that a copy of the report of the enquiry that was conducted against him had not been served on him. Therefore, he was handicapped in submitting his explanation effectively. However, as per Ext.P12 proceedings dated 21-5-2010, the second respondent enhanced the punishment to the barring of two increments with cumulative effect and extended the petitioner's period of probation until the case against him was finally disposed of. The petitioner has filed this writ petition challenging Exts.P9 and P12 proceedings by which he has been punished. 4. According to the counsel for the petitioner, the petitioner was not aware of the registration of a crime against him. He had WPC 10147/2011 4 not been summoned to the Police Station at any time in connection with the said crime. Nor was his statement recorded at any time before he filed his affidavit. Since the final report in the said crime had not been submitted by the Police, no intimation from the court was also issued to the petitioner. Therefore, it is contended that the petitioner had no means of coming to know of the existence of crime No: 175/2005 of Kattappana Police Station. The petitioner has produced Ext.P14 which is a copy of the complaint on the basis of which the crime was registered against him. The complainant therein is the Deputy Chief Engineer, Electrical Circle Thodupuzha, the fourth respondent herein. Therefore, it is pointed out that if at all there was any authority that had knowledge of the said proceedings, it was only the fourth respondent. However, in Ext.P8 what is stated by the third respondent is that the facts relating to the existence of the said crime came to the notice of the first respondent only through a Police Verification Report dated 1-12006 subsequent to the petitioner's joining duty. It is therefore contended by the counsel for the petitioner that the petitioner had no opportunity of coming to know of the existence of the said proceedings at the time of submitting Ext.P6 affidavit. It is further pointed out that the query in Ext.P6 at serial No:14 was whether WPC 10147/2011 5 any case was pending against the candidate in a criminal court. The petitioner has answered the question in the negative. It is not in dispute that as on 26-9-2005 there was no case pending before the criminal court against the petitioner. For the above reasons it is contended that the punishment imposed on the petitioner are liable to be set aside. 5. Apart from the above, the petitioner relies on Ext.P16 proceedings by which the criminal proceedings against the petitioner have been dropped for the reason that the complaint itself was barred by limitation. In view of the fact that the criminal proceedings are over, it is contended that the petitioner is entitled to restoration of the benefits denied to him by the impugned proceedings. He also seeks setting aside of the punishment imposed on him. According to the petitioner, the disciplinary proceedings against him are vitiated by violation of the principles of fair play for the reason that no report of the enquiry was served on him before imposing the punishment. Therefore, the petitioner seeks the issue of appropriate directions quashing Exts.P9 and P12. 6. Adv. Pulikool Aboobacker who appears for the respondents opposes the contentions of the counsel for the petitioner. It is pointed out that the petitioner was well aware of WPC 10147/2011 6 the existence of the criminal case pending against him. Crime No:175/2005 of Kattappana Police Station was registered as early as on 2-5-2005. Crime was registered on the basis of a complaint made by the fourth respondent, Ext.P14 dated 19-4-2005. Therefore, on 26-9-2005 when the petitioner submitted Ext.P6 affidavit, he should have in fairness disclosed the existence of the said criminal case in his affidavit. The petitioner cannot wriggle out of the consequences of his omission to do so by contending that he was not aware of the existence of the said crime. It is contended that the petitioner is only feigning ignorance of the said proceedings. The disciplinary proceedings initiated against the petitioner were conducted in full compliance with the rules of procedure applicable and therefore it is contended that the punishments imposed on the petitioner are justified. The conduct of the petitioner in swearing to a false affidavit is a matter that requires serious action on the part of the authorities. However, the punishment imposed on the petitioner is only proportionate to the gravity of the offence committed. Therefore, it is contended that neither Ext.P9 nor Ext.P12 call for any interference at the hands of this Court. 7. I have heard the contentions of the counsel appearing for WPC 10147/2011 7 the rival parties. I have also considered the rival contentions anxiously. 8. It is not in dispute that crime No: 175/2005 had been registered against the petitioner as early as on 2-5-2005 by the Kattappana Police Station. The crime was admittedly registered on the basis of Ext.P14 complaint made by the fourth respondent alleging impersonation and other offences against the petitioner. It appears that the fourth respondent had not followed up his complaint, after submitting the same though his complaint involved allegations regarding commission of serious offences. For the said reason, even the other respondents were not aware of the said case that had been registered against the petitioner. The above fact is clear from paragraph 2 of Ext.P8, which is extracted hereunder for convenience of reference:- “The above facts came to the notice of K.S.E.Board through the police verification report No: 823/SBVS/05ID dated 1.1.2006 subsequent to his joining duty. Therefore he was charge sheeted from this office vide reference read (1) cited.” It has therefore to be concluded that the respondents were not aware of the existence of the registration of the crime against the petitioner. Regarding the question as to whether the petitioner was WPC 10147/2011 8 aware of the registration of the said crime, absolutely no material has been placed before me to warrant a conclusion that the petitioner had deliberately misrepresented facts in Ext.P6. If, as a matter of fact, the petitioner had been questioned in connection with the said crime, that would certainly have been borne out by the Police records which the respondents have not bothered to verify. It is true that a domestic enquiry was conducted into the allegations. Curiously enough, the finding of the enquiry is that the allegations against the petitioner are 'partially proved' as disclosed by Ext.P7. The relevant portion of Ext.P7 is extracted below for convenience of reference:- “As the charges levelled against you were partially proved, it is proposed to award you a punishment of “barring of one increment without cumulative effect for one year and the probation period is extended till the disposal of the case.” Therefore you are directed to show cause if any as to why the proposed punishment should not be inflicted up on you, within 15 days on receipt of this notice. If no reply is received within the stipulated time the disciplinary action initiated against you will be finalized with the presumption that you have nothing to offer in this regard.” 9. It therefore follows that, at the enquiry also the allegations WPC 10147/2011 9 against the petitioner were not conclusively proved. Apart from the above a copy of the said enquiry report was not furnished to the petitioner at any time. Therefore, the petitioner had no opportunity to verify the conclusions of the enquiry officer or to dispute the correctness thereof in any of the subsequent proceedings, Exts.P7, P9, P10 or P12. The above defect has also seriously prejudiced the petitioner. A Division Bench of this Court has in the decision reported in **Dr. C.B.Sudhakaran v. Cochin Educational Society and another {2009(1) KHC 685 (DB)}** held as follows, while considering a similar contention:- “By virtue of the Constitution Bench of the Apex Court, the position of law is settled that furnishing a copy of the enquiry report, before accepting the same by the employer and proposing a punishment, is a mandatory requirement of the principles of natural justice. As such, a report also forms part of the proceedings in a disciplinary action, based on which the management decides as to whether a punishment should be imposed or not. Therefore, it is not only the materials before the enquiry, but the enquiry report also forms the basis of further action, and hence as held by the Apex Court, in case, the report is not furnished to the delinquent employee before arriving at a conclusion as to accept or reject the finding thereof, will certainly vitiate the disciplinary action taken against him.” WPC 10147/2011 10 In the light of the above, there cannot be any doubt that the omission to supply a copy of enquiry report has vitiated the proceedings. It is also to be noted that the query in Ext.P6 and the answer given by the petitioner, when read dispassionately does not warrant a conclusion that the petitioner has been guilty of willful suppression of relevant facts. The relevant portion of Ext.P6 reads as follows:- “(a) If there any case pending against the candidate - in a Criminal Court? (Answer 'Yes' or 'No') No If the answer is 'Yes' give the details” The affidavit was sworn to on 26-9-2005. Since at the relevant point of time, there was no case pending before a criminal court against the petitioner, it cannot also be said that the petitioner has deliberately given a wrong answer to the query that was posed. At best, the petitioner can be accused only of not having disclosed an information that he should have legitimately volunteered to disclose. For the said reason alone, I am not satisfied that the proceedings initiated against the petitioner can be sustained. 10. For the foregoing reasons, I find that the punishments imposed on the petitioner as per Exts.P9 and P12 proceedings are unsustainable and liable to be set aside. WPC 10147/2011 11 11. This writ petition is in the above circumstances, allowed on the following terms: i) The impugned proceedings Exts.P9 and P12 are set aside. ii) The respondents are directed to pass necessary orders pursuant to Ext.P16 proceedings, declaring the probation of the petitioner. iii) The petitioner shall also be entitled to all consequential benefits. Sd/K. SURENDRA MOHAN Judge jj /True copy/ P.S.to Judge WPC 10147/2011 12